Warring factions in the state's legal battle over English-language
instruction went to court Tuesday looking for resolution -- and got a
suggestion that they hold their own peace talks on the controversial matter.
Johnnie B. Rawlinson, a Circuit Court judge with the 9th U.S. Circuit Court
of Appeals, asked if any of the parties had tried mediation.

"It seems like the state is feeding on itself," she observed, noting that
state officials and lawmakers are at odds over how to meet federal
equal-opportunity requirements for English instruction. The issue has
been tied up in court for more than 15 years.

No, she was told, mediation is one consideration that hasn't been
entertained in the long-running Flores vs. Arizona case.

Attorney Tim Hogan, representing the estimated 140,000 Arizona students
classified as "English-language learners," said he'd be
amenable to mediation. He told the three-judge panel he wants to see the
lawsuit resolved, and noted that he had made a settlement offer to lawmakers
early this year. It was rejected.

But, Hogan said, there are philosophical, financial and political barriers
to convening a mediation conference. The court did not specify what form the
mediation would take.

Attorney Jose Cardenas, representing Gov. Janet Napolitano and the state
Board of Education, said he imagined the governor would be open to mediation
if there were a reasonable chance of success.

State officials are sorely divided over how to resolve the Flores case, even
though technically, they are on the same side of the case because they're
named as defendants.

Napolitano split from state Superintendent of Public Instruction Tom Horne's
defense that the state had made great strides in educating students
struggling to learn English and, therefore, the lawsuit should be
dismissed. Instead, although she is a defendant, she hired her own attorney
and effectively joined Hogan in arguing for further contributions from the
state.

Meanwhile, legislative leaders hired their own attorneys and joined the
lawsuit, adding their voices to Horne's defense.

Attorneys for those defendants on Tuesday had no immediate sense of whether
mediation was a possibility.

Even if they did, there's the likelihood that legislative leaders couldn't
guarantee a majority of lawmakers would follow them.

"What we need is a prompt ruling from this court," Cardenas said.

A question of funding

At issue before the court Tuesday was what constitutes adequate funding for
English instruction.

U.S. District Court Judge Raner Collins had ruled that a plan approved by
lawmakers in 2006, and allowed to go into law without Napolitano's
signature, didn't meet federal standards for providing equitable education
opportunities. Collins specifically criticized two components of the state
law: that students could only benefit from English-learner
funds for two years, and that the state could use federal dollars earmarked
for poor students to supplant the state's investment in English
learning.

Attorney David Cantelme, representing Senate President Tim Bee and House
Speaker Jim Weiers, told the court that Arizona education has come a long
way since 2000, when a federal judge ruled that the state's plan to pay for
such instruction was "arbitrary and capricious."

For example, the state adopted an English-immersion approach to
language instruction, increased teacher pay and even changed the way it pays
for school construction. And, perhaps most importantly, the Nogales Unified
School District, home of the student whose lawsuit trigged this legal
battle, has posted significant improvements in English mastery,
Cantelme said.

The judges pressed him, however, to point to a dollar figure that represents
adequate funding.

"No one has a complete, accurate estimate in the record," he said. And
that's because success is judged by results, not by funding levels. The
amount of money needed to bring students up to speed in language instruction
will vary from district to district, given individual circumstances.

"The question is the opportunity (provided), it's not the dollars spent,"
Cantelme said.

Fletcher noted that the Legislature's plan calls for cutting off state
dollars for English-language learners after two years.

But Cantelme said that wouldn't hamper students, since school districts
could always tap into their maintenance-and-operations dollars to cover
extra costs.

The Nogales model

Attorney Rick Bistrow, representing schools superintendent Horne, argued
that the No Child Left Behind federal program, with its requirements that
schools demonstrate progress in various subject areas, is proof that Arizona
schools such as the Nogales district are providing an equitable education.
Nogales met the federal standards, and, by implication, that indicates
students are getting enough funding to learn English and keep up with
the No Child Left Behind standards, Bistrow said.

Hogan argued that simply taking instruction money out of
maintenance-and-operations budgets won't meet the federal standard of
providing equitable education opportunities. He pressed his case that the
state needs to put more money into a program that targets English-language
learners, on top of the basic state aid that the Legislature allots
per student.

Before Tuesday's arguments, House Speaker Weiers said he was confident the
state would prevail, since he believed the facts show improvement in
language instruction even without big infusions of money. But lawmakers are
also readying themselves for a prolonged legal battle, lining up former
special prosecutor Ken Starr to help argue their case before the U.S.
Supreme Court, if it comes to that.

It is widely believed that whichever side loses Tuesday's arguments before
the Appeals Court will try to convince the nation's highest court to take it
on.

Starr's office confirmed that he had extended his help. Starr is now dean of
the Pepperdine University School of Law, but is best known for investigating
former President Clinton in a probe that ultimately led to an impeachment
vote against the president. Starr also has served as U.S. solicitor general
and served as a U.S. District Court judge.

* If this deadline passes without action, the state could be fined by the
federal court for inaction. No amount has been set, but the attorney
pressing the case has suggested daily fines that start at $500,000.

* A ruling from the 9th U.S. Circuit Court of Appeals could remove this
deadline, or reinforce it.

* All Arizona schools must have English-learner programs in
place by the start of the fall 2008 school year.